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COVID-19 Update: Emergency Paid Leave, FMLA Expansion and Workers’ Compensation
Effective April 1, 2020, the Families First Coronavirus Response Act (FFCRA) imposed new obligations on private sector employers with less than 500 employees and covered governmental employers to provide employees with paid leave related to the COVID-19 pandemic. Broadly speaking, the new obligations include emergency paid sick leave and expanded paid Family and Medical Leave Act (FMLA) leave.
Effective April 16, 2020, the Illinois Workers’ Compensation Commission (IWCC) created a second emergency amendment to Rule 9030.70, expanding the Commission’s Rules of Evidence to include a rebuttable presumption for first responders and front-line workers exposed to COVID-19. Numerous concerns are raised by the IWCC’s recent rule, many of which point to the possibility that Illinois employers may see an uptick in workers’ compensation claims related to COVID-19.
For those Illinois employers that are also subject to the FFCRA’s new paid leave requirements, many may be asking:
Do I owe emergency paid sick leave and expanded paid FMLA to an employee who also has a workers’ compensation claim based on COVID-19 exposure?
To answer this question, employers should first note that the FFCRA provides two types of paid leave for different reasons. For the expanded paid FMLA leave, a qualifying need arises only when an employee cannot work (including telework) because the employee needs to care for a minor child if the child’s school or place of childcare has been closed or is unavailable due to a public health emergency. Since the expanded FMLA leave is not triggered by a COVID-19 diagnosis or related illness, an employee pursuing a workers’ compensation claim based on COVID-19 will not be entitled to expanded FMLA leave for that reason. Like always, employers should note that an employee suffering from COVID-19 may be entitled to “regular” FMLA leave, depending on the severity of symptoms and potential complications.
That leaves the question of whether an employee with a workers’ compensation claim based on COVID-19 is also eligible for emergency paid sick leave under the FFCRA. At first glance, it appears possible, since a COVID-19 diagnosis, treatment or quarantine are all listed as potential triggering events for 80 hours of emergency paid sick leave.
Luckily, the Department of Labor has addressed this issue in Question No. 76 of its recent guidance as follows:
May I take paid sick leave or expanded family and medical leave if I am receiving workers’ compensation or temporary disability benefits through an employer or state-provided plan?
In general, no, unless you were able to return to light duty before taking leave. If you receive workers’ compensation or temporary disability benefits because you are unable to work, you may not take paid sick leave or expanded family and medical leave. However, if you were able to return to light duty and a qualifying reason prevents you from working, you may take paid sick leave or expanded family and medical leave, as the situation warrants.
With this, employers have good grounds to limit payments to TTD only for those employees with a workers’ compensation claim based on COVID-19, even if the employer would otherwise be required to provide emergency paid sick leave under the FFCRA.
As new guidance is issued on a regular basis, we will continue to monitor this question and keep you advised of any new developments.